Federal District Court Recognizes Right to Carry Gun Outside the Home, Holds Unconstitutional Maryland’s Restrictive Carry Licensing Scheme

Maryland law provides that people may not carry a gun (concealed or otherwise) outside the home without a license, and the license is to be given only when the applicant has “good and substantial” reason to carry a gun. Such reasons, according to Maryland authorities, can be: “(1) business activities that involve heightened risk, such as the need to carry cash or other ‘street valued’ commodities, (2) participation in ‘regulated professions,’ such as security guards or armored car personnel, (3) participation in ‘assumed risk’ professions that involve the ability to restrict or take away civil liberties, such as judges, prosecutors, police officers, public defenders, and correctional officers,” and (4) “personal protection” when the applicant can show “some sort of objectively heightened threat, above and beyond the ‘personal anxiety’ or ‘apprehension of an average person.'” (Carrying an “an unloaded handgun” is also allowed “to and from places where it may legally be possessed without a permit, such as the owner‘s home, a repair shop, a target range, or a gun show.”)

Woollard v. Sheridan (D. Md. Mar. 2, 2012) holds that this unconstitutionally restricts the rights of law-abiding people who want to carry for personal protection based precisely on the “apprehension of an average person,” with no “objectively heightened threat.” The court follows Fourth Circuit precedent (United States v. Masciandaro) in holding that restrictions on gun possession outside the home are subject to “intermediate scrutiny,” i.e., must be (in the district court’s words) “reasonably adapted to a substantial governmental interest.” But these terms are notoriously vague — what’s significant is the meaning the court gives them in this context:

The Maryland statute’s failure lies in the overly broad means by which it seeks to advance this undoubtedly legitimate end [of public safety]. The requirement that a permit applicant demonstrate “good and substantial reason” to carry a handgun does not, for example, advance the interests of public safety by ensuring that guns are kept out of the hands of those adjudged most likely to misuse them, such as criminals or the mentally ill. It does not ban handguns from places where the possibility of mayhem is most acute, such as schools, churches, government buildings, protest gatherings, or establishments that serve alcohol. It does not attempt to reduce accidents, as would a requirement that all permit applicants complete a safety course. It does not even, as some other States’ laws do, limit the carrying of handguns to persons deemed “suitable” by denying a permit to anyone “whose conduct indicates that he or she is potentially a danger to the public if entrusted with a handgun.”

Rather, the regulation at issue is a rationing system. It aims, as Defendants concede, simply to reduce the total number of firearms carried outside of the home by limiting the privilege to those who can demonstrate “good reason” beyond a general desire for self-defense….

A law that burdens the exercise of an enumerated constitutional right by simply making that right more difficult to exercise cannot be considered “reasonably adapted” to a government interest, no matter how substantial that interest may be. Maryland’s goal of “minimizing the proliferation of handguns among those who do not have a demonstrated need for them” is not a permissible method of preventing crime or ensuring public safety; it burdens the right too broadly. Those who drafted and ratified the Second Amendment surely knew that the right they were enshrining carried a risk of misuse, and states have considerable latitude to channel the exercise of the right in ways that will minimize that risk. States may not, however, seek to reduce the danger by means of widespread curtailment of the right itself.

I think this result is correct — as I read Heller, it recognize a right to keep and bear arms for purpose of self-defense, and self-defense is needed wherever a person happens to be, not just in the home. (See pp. 1516-1524 of my Implementing the Right to Keep and Bear Arms in Self-Defense article.) Heller does approve of some historically recognized limitations on the right, such as bans on concealed carry or bans on carrying into particular “sensitive places.” But I think the logic and language of Heller suggests that the right does extend to other sorts of carrying outside the home. And while I think that talk of “intermediate scrutiny” isn’t very helpful here, the district court’s analysis in applying intermediate scrutiny seems to me to be quite right.

This having been said, most recent court decisions that have squarely considered the matter have upheld broad restrictions on carrying, though some — like the Fourth Circuit — have suggested that such restrictions’ constitutionality remains unsettled, and a Puerto Rico appellate decision reached the same result that this Maryland federal court decision did. Indeed, Maryland’s highest court has upheld the Maryland statute, concluding that gun possession outside the home is outside the Second Amendment; it’s possible to read that decision more narrowly as simply upholding the permitting requirement but leaving open the question whether permits must be granted to pretty much all law-abiding applicants, but I think the logic of the Maryland high court opinion is broader than that, and would lead to the rejection of the very claim that the federal district court accepted in this case.

So it will be interesting to see what the Fourth Circuit does with this on appeal. And if the Fourth Circuit agrees with the district court, that will likely be seen as creating a split between the Fourth Circuit and Maryland’s highest court — plus state courts in some other states — which would mean there would be a substantial chance that the Supreme Court will agree to hear the case. (If the Fourth Circuit reverses the district court, and rejects the Second Amendment claim, then the Supreme Court will be quite unlikely to grant review.)

UPDATE: Whoops — David Kopel beat me to this.

Also, I forgot to note that, while most of the post-Heller cases that have considered whether the Second Amendment secures a right to keep and bear arms outside the home — cases from generally not very gun-friendly states, such as California, Illinois, Maryland, and Massachusetts — have rejected such a right to carry, most of the pre-Heller cases asking the same question about state constitutional rights to keep and bear arms have recognized a right to carry.

For cases or attorney general opinions holding or suggesting that there is a right to carry openly, see State v. Reid, 1 Ala. 612, 619 (1840) (dictum), reaffirmed, Hyde v. City of Birmingham, 392 So. 2d 1226, 1228 (Ala. Crim. App. 1980); Dano v. Collins, 802 P.2d 1021 (Ariz. Ct. App. 1990), review granted but later dismissed as improvidently granted, 809 P.2d 960 (Ariz. 1991); Nunn v. State, 1 Ga. 243 (1846), reaffirmed, Strickland v. State, 72 S.E. 260, 264 (Ga. 1911); In re Brickey, 70 P. 609 (Idaho 1902); Holland v. Commonwealth, 294 S.W.2d 83, 85 (Ky. 1956) (dictum); State v. Chaisson, 457 So. 2d 1257 (La. Ct. App. 1984); City of Las Vegas v. Moberg, 485 P.2d 737 (N.M. Ct. App. 1971); State v. Kerner, 107 S.E. 222 (N.C. 1921); State v. Nieto, 130 N.E. 663, 664 (Ohio 1920) (dictum), reaffirmed, Klein v. Leis, 795 N.E.2d 633, 638 (Ohio 2003); Glasscock v. City of Chattanooga, 11 S.W.2d 678 (Tenn. 1928); State ex rel. City of Princeton v. Buckner, 377 S.E.2d 139 (W. Va. 1988); La. Op. Att’y Gen. No. 80- 992 (1990); Wisconsin Department of Justice Advisory Memorandum (Apr. 20, 2009), http://www.doj.state.wi.us/news/files/FinalOpenCarryMemo.pdf.

For cases holding the right extends even to carrying a concealed weapon, though perhaps regulated through a nondiscretionary licensing regime, see Kellogg v. City of Gary, 562 N.E.2d 685, 705 (Ind. 1990); Schubert v. DeBard, 398 N.E.2d 1339 (Ind. Ct. App. 1980); Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90 (1822), abrogated as to concealed carry but not as to open carry by Ky. Const. of 1850, art. XIII, § 25; State v. Rosenthal, 55 A. 610, 610–11 (Vt. 1903); State v. Vegas, Case No. 07 CM 687 (Cir. Ct. Milwaukee County Sept. 24, 2007), available at http://www.law.ucla.edu/volokh/vegas.pdf (concluding that under State v. Hamdan, 665 N.W.2d 785 (Wis. 2003), the right to bear arms may include the right to concealed carry in some narrow circumstances, especially where the person is engaging in dangerous activity such as delivering pizzas in high-crime areas).

Oregon courts take the view that the right extends to carrying weapons openly, but allows restrictions on carrying loaded guns, so long as the law allows the carrying of both an unloaded gun and ammunition. See State v. Delgado, 692 P.2d 610, 614 (Or. 1984) (striking down total ban on carrying switchblade knives); Barnett v. State, 695 P.2d 991 (Or. Ct. App. 1985) (per curiam) (striking down a total ban on carrying blackjacks); State v. Boyce, 658 P.2d 577, 578–79 (Or. Ct. App. 1983) (upholding a requirement that handguns be carried unloaded). The Louisiana Chaisson decision struck down a very limited carrying ban — one that applied only while hunting frogs at night — but its reasoning suggested that there was a constitutional right to carry for self-defense (including self-defense against alligators). 457 So. 2d at 1259; see also State v. Chandler, 5 La. Ann. 489, 490 (1850) (taking this view with regard to the Second Amendment). City of Lakewood v. Pillow, 501 P.2d 744 (Colo. 1972), also struck down a carry ban because it was broad enough to ban gun stores, ban people “from transporting guns to and from such places of business,” and ban people from “possess[ing] a firearm in a vehicle or in a place of business for the purpose of self-defense”; the court concluded that “[s]everal of these activities are constitutionally protected,” which suggests that carrying in a car might have been protected. Id. This is consistent with the Colorado right to bear arms’ express exclusion of “the practice of carrying concealed weapons,” Colo. Const. art. II, § 13, which suggests that carrying weapons unconcealed would be presumptively protected.

All these cases speak of carrying in most public places; they often leave room for restrictions on carrying in particular places, such as businesses that serve liquor, churches, or polling places.

For some state courts’ decisions that a state constitutional right to keep and bear arms does not extend outside the home, see City of Cape Girardeau v. Joyce, 884 S.W.2d 33 (Mo. Ct. App. 1994); Pierce v. State, 275 P. 393 (Okla. Crim. App. 1929); Commonwealth v. Ray, 272 A.2d 275, 278–79 (Pa. Super. Ct. 1970), vacated, 292 A.2d 410 (Pa. 1972); Masters v. State, 685 S.W.2d 654 (Tex. Crim. App. 1985) (per curiam). But see Cockrum v. State, 24 Tex. 394, 401–02 (1859) (taking the view that the right to bear arms includes the right to carry them); Galloway v. State, 69 S.W.2d 89, 90 (Tex. Crim. App. 1933) (per curiam) (likewise).